Pramod Kumar vs State

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.10.2026
Date of Decision: 29.10.2026
Uploaded on: 29.10.2026
# CNR No. DLHC010233012016
+ CRL.A. 98/2016
PRAMOD KUMAR ....Appellant
Through: Mr. Kashmir Singh, Adv.
versus
STATE .....Respondent
Through: Ms. Raghuvinder Verma, APP for the
State
CORAM:
HON'BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present appeal has been preferred by the appellant, Pramod Kumar,
challenging the judgment dated 21.12.2015 and the order on sentence dated
22.12.2015 passed by the learned Additional Sessions Judge-03 (Central), Tis
Hazari Courts, Delhi, in Sessions Case No. 88/2015 arising out of FIR No.
115/2012 registered at Police Station Ranjit Nagar, Central District, Delhi.
Vide the impugned judgment, the appellant was convicted for the offences
punishable under Sections 392, 397 and 411 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC’) and Sections 25 and 27 of the Arms Act,
1959 (hereinafter referred to as ‘Arms Act’). The appellant was sentenced to
rigorous imprisonment for a period of three (3) years with a fine of ₹1,000/-
for the offence punishable under Section 392 IPC, rigorous imprisonment for
a period of seven (7) years with a fine of ₹1,000/- for the offence punishable
under Section 397 IPC, simple imprisonment for a period of one (1) year for
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the offence punishable under Section 411 IPC and rigorous imprisonment for
a period of three (3) years with a fine of ₹1,000/- for the offence punishable
under Section 25 of the Arms Act. In default of payment of each fine imposed
under Sections 392 and 397 IPC and Section 25 of the Arms Act, the appellant
was directed to undergo simple imprisonment for a period of one month. All
the substantive sentences were directed to run concurrently and the benefit of
Section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as ‘CrPC’) was extended to him. The order on sentence does not separately
award any sentence for the offence punishable under Section 27 of the Arms
Act.
FACTS
Prosecution’s Case
2. The case of the prosecution is that on 13.07.2012, at about 10:00 a.m.,
the complainant, Nitin Shukla, along with his friends Mohit and Tanmay, was
travelling in a bus from Shadipur Depot towards East Patel Nagar. While they
were deboarding near the East Patel Nagar Public Library, the complainant
noticed that his Nokia X2-01 mobile phone was missing. It is alleged that
when Tanmay dialled the number of the missing phone, its ringtone was heard
from the pocket of the appellant. The appellant allegedly took out the phone
and discarded its SIM card. When Tanmay sought the return of the phone, the
appellant is stated to have taken out a button-operated knife, placed it against
his abdomen and threatened to stab him. The appellant was thereafter
allegedly apprehended with the assistance of the other passengers and
members of the public, and the mobile phone and knife were taken from him.
A call was made to the police and, on the basis of the statement of the
complainant, the aforementioned FIR was registered.
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3. Upon receipt of the information recorded vide DD Nos. 13-A and 15-
A , the police reached the spot. According to the prosecution, the complainant
and his friends, with the assistance of Krishan Gopal, handed over the
appellant along with the mobile phone and knife to the police. The knife was
sketched and seized, the mobile phone was taken into possession and the
appellant was arrested. During the course of investigation, the Investigating
Officer (IO) collected the documents relating to the mobile phone, the PCR
records and the call-detail record. Upon completion of the investigation, the
charge-sheet was filed against the appellant.
Framing of Charges
4. Upon consideration of the material on record, the learned Trial Court,
vide order dated 22.04.2013, framed charges against the appellant under
Sections 392, 397 and 411 IPC and Sections 25 and 27 of the Arms Act, as
recited in the formal charge. It was alleged that on 13.07.2012, while
travelling in Bus Route No. 944 near the East Patel Nagar Public Library, the
appellant committed robbery of the complainant’s mobile phone, used a knife
while committing the robbery, retained the stolen mobile phone and possessed
a button-operated knife without any permit or licence in contravention of the
applicable notification issued under the Arms Act. The appellant pleaded not
guilty to the charges and claimed trial.
Prosecution Evidence (PE)
5. In support of its case, the prosecution examined thirteen (13) witnesses.
The complainant, Nitin Shukla (PW-2), and Mohit (PW-3), in their
examinations-in-chief recorded on 05.12.2013, narrated the alleged incident,
identified the appellant and attributed the recovery of the mobile phone and
knife to him. Their cross-examinations were deferred at the request of the
defence. When PW-2 was cross-examined on 13.11.2014, he stated that his
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mobile phone was not found and nobody was apprehended at the spot, and
that neither the mobile phone was recovered nor the appellant arrested until
about 3:00 p.m., while he remained at the police station. He further stated that
his earlier deposition had been made after going through his statement at the
instance of the IO and that he had identified the appellant at the instance of
the IO. It was further deposed that the contents of Ex. PW-2/A (rukka) had
not been narrated by him to the police and that the seizure memos of the knife
and mobile phone and the sketch of the knife had been prepared at the police
station. PW-3, when cross-examined on 28.01.2015, stated that the mobile
phone had not been recovered after the incident, that the appellant had not
been apprehended until about 3:00/4:00 p.m., while the witnesses remained at
the police station and that he had seen the appellant for the first time before
the Court.
6. Tanmay (PW-4) in his examination-in-chief deposed, that the mobile
phone of PW-2 had gone missing and that he had made a call to the police.
He, however, did not support the prosecution regarding the ringtone having
emanated from the appellant’s pocket, the recovery of the mobile phone and
knife, or the alleged threat extended with the knife. Krishan Gopal (PW-6),
the independent public witness, stated that members of the public had
apprehended one person following an incident of pickpocketing, but he was
unable to identify that person and did not support the material particulars
attributed to him. PW-4 and PW-6 were cross-examined by the learned
Additional Public Prosecutor at the time.
7. HC Shiv Lal (PW-5), the PCR official, deposed that the complainant
and his friends had apprehended the appellant with the assistance of PW-6
and had handed him over along with the recovered mobile phone and knife.
SI Khajan Singh (PW-13), the Investigating Officer (IO), also deposed
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regarding the apprehension of the appellant, the alleged recoveries,
preparation of the seizure documents and arrest of the appellant. Dr. Shaily
Meena (PW-1) proved the medical examination of the appellant. HC Ravi
Kumar (PW-7) proved the relevant DD entries and registration of the FIR,
while HC Surender Kumar (PW-9) and Ct. Anil (PW-10) proved the PCR
records. Dinesh Kumar (PW-8) proved the notification issued under the Arms
Act. Saurabh (PW-11) proved the invoice relating to the mobile phone, and
Hemant Singh (PW-12) proved the call-detail record (CDR), customer
application form and the certificate under Section 65B of the Indian Evidence
Act, 1872 (hereinafter referred to as ‘Evidence Act’).
Defence Evidence (DE) (Statement under 313 CrPC)
8. After the conclusion of the prosecution evidence, the incriminating
circumstances appearing against the appellant were put to him in his statement
recorded under Section 313 CrPC. The appellant denied the prosecution
evidence and claimed false implication. He stated that he had gone to Sir
Ganga Ram Hospital by a TSR for treatment of a cyst on his upper lip and had
been picked up by the police from the gate of the hospital. He further stated
that the IO had implicated him because he had not appeared before him
despite being directed to do so and that the IO bore a grudge against him. The
appellant did not lead any evidence in his defence.
Impugned Judgment
9. Upon appreciation of the evidence on record, the learned Trial Court
relied upon the examination-in-chief of PW-2 and PW-3. It observed that their
cross-examination had been recorded after a substantial interval and that the
order dated 16.07.2014 reflected that the complainant and the appellant had
sought an adjournment to approach this Court for quashing of the FIR. The
learned Trial Court held that the subsequent departure of these witnesses from
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their examination-in-chief did not render their earlier testimony wholly
unreliable. It further relied upon the portions of the testimony of PW-4 which
it found reliable, the deposition of PW-5 and the PCR record concerning the
apprehension of a person and the recovery of a mobile phone and knife. The
learned Trial Court consequently held that the apprehension of the appellant,
recovery of the mobile phone and knife, and use of the knife during the
commission of the robbery stood proved beyond reasonable doubt.
Accordingly, the appellant was convicted for the offences punishable under
Sections 392, 397 and 411 IPC and Sections 25 and 27 of the Arms Act.
Order on Sentence
10. Thereafter, arguments on the quantum of sentence were heard. On
behalf of the appellant, leniency was sought on the grounds that he was about
forty years of age, had a wife and four children, was the sole earning member
of his family, had his father to look after and had no previous criminal
antecedents. The learned Trial Court, however, having regard to the
circumstances in which the offence was found to have been committed and
the use of a knife, declined to extend the benefit of leniency and imposed the
sentences noticed hereinabove.
Present Proceedings
11. Aggrieved by the aforesaid conviction and the order on sentence, the
appellant preferred the present criminal appeal before this Court. The appeal
was admitted vide order dated 27.01.2016. Although the appellant’s initial
application seeking suspension of sentence was dismissed on 15.03.2016, his
sentence was subsequently suspended vide order dated 19.07.2017 and his
release on bail was directed, subject to the conditions stipulated therein.
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SUBMISSIONS ADVANCED
On behalf of the Appellant
12. Learned counsel appearing on behalf of the appellant submitted that the
conviction cannot be sustained since the material public witnesses had not
supported the case of the prosecution when their testimonies were read in their
entirety. It was contended that the learned Trial Court had nevertheless relied
substantially upon the examinations-in-chief of PW-2 and PW-3,
notwithstanding the material departures made by them during their cross-
examination.
13. Drawing attention to the testimony of PW-2, Nitin Shukla, learned
counsel submitted that his examination-in-chief was recorded on 05.12.2013,
whereas he was cross-examined on 13.11.2014, after an interval of almost one
year. It was submitted that during his cross-examination, PW-2 admitted that
his earlier deposition had been made after going through his statement at the
instance of the Investigating Officer, that he had identified the appellant at the
instance of the Investigating Officer, that the appellant had not been
apprehended at the spot and that the seizure memos and the sketch of the knife
had been prepared at the police station. It was urged that these admissions
rendered his earlier version unsafe to rely upon.
14. Learned counsel further submitted that PW-3, Mohit, whose
examination-in-chief was also recorded on 05.12.2013, did not support the
prosecution case during his cross-examination recorded on 28.01.2015. PW-
4, Tanmay, likewise did not support the prosecution version concerning the
alleged recovery and use of the knife and was cross-examined by the learned
Additional Public Prosecutor (APP) also.
15. Learned counsel also drew attention of this Court towards the
impugned judgment, wherein the learned Trial Court relied upon the interval
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between the examinations-in-chief and cross-examinations of PW-2 and PW-
3 and upon portions of the testimony of PW-4. On the basis of the aforesaid
made submissions, it was submitted that the conviction could not be sustained.
On behalf of the State
16. Learned APP appearing on behalf of the State opposed the appeal and
submitted that PW-2 and PW-3 had supported the prosecution’s case during
their examinations-in-chief. It was further submitted that the stolen mobile
phone had been recovered from the possession of the appellant and that the
said recovery supported the prosecution’s case. The conviction of the
appellant was, accordingly, sought to be sustained.
Rebuttal on behalf of the Appellant
17. In rebuttal, the learned counsel appearing on behalf of the appellant
reiterated that PW-2 had expressly admitted that his earlier deposition was
made after going through his statement at the instance of the IO. It was further
submitted that the further examination of PW-4 had been deferred at the
request of the learned APP and that when he (PW-4) was subsequently
examined, he did not support the prosecution’s case, and that he was further
cross-examined by the prosecution also wherein he did not support its case
again either. It was thus contended that reliance upon the earlier examinations-
in-chief of the witnesses was misplaced.
ANALYSIS AND FINDINGS
18. This Court has heard the learned counsel appearing on behalf of the
appellant and the learned APP for the State and has also perused the evidence
placed on record.
19. The principal question that arises for consideration of this Court in the
present appeal is whether the subsequent departures made by PW-2 and PW-
3 in their cross-examinations efface their earlier sworn testimony, and
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whether the evidence, read as a whole, proves the robbery, the use of the knife
and the apprehension of the appellant at the spot.
20. Since the principal controversy in the present appeal arises from the
materially divergent versions given by PW-2 and PW-3 in their examinations-
in-chief and their subsequently recorded cross-examinations, this Court
considers it apposite to reproduce the relevant portions of their depositions.
Their cross-examinations, recorded after substantial intervals, contain
departures bearing upon the core of the prosecution’s case. The re-
examination of PW-2 also assumes significance, as it directly addresses the
explanation offered for the change in his version. The evidentiary worth of
these witnesses cannot, therefore, be assessed by referring to isolated answers
or by reading one part of their testimony to the exclusion of the other.
Accordingly, the material portions of their examinations-in-chief and cross-
examinations, together with the re-examination of PW-2, are set out below,
so that their testimony may be evaluated as a whole and tested against the
independent corroborative evidence available on record.
PW-2’s Examination-in-Chief (Dated 05.12.2013)
“In the year 2012, I was student of BOA at Pusa
Institute, New Delhi . On 13.07.2012, it was
around 10 am, I boarded a bus from Shadipur
Depot for going to Patel Nagar East. My other
two friends, namely, Mohit and Tanmay with me.
As soon as, bus was reaching Patel Nagar Bus
Stop, I felt that someone had removed my Mobile
Phone make Nokia X2-01 which was kept by me
in the left side pocket of pant. I immediately told
this fact to my friends who were also travelling
with me. My friend Tanmay immediately made a
call on my mobile phone and the ring of my
mobile phone started and it was found ringing in
the pocket of accused. Accused took out the
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phone from his pocket and destroyed the SIM.
When my friend Tanmay tried to take my mobile
phone from the accused, accused took out one
knife from his dub of pant. Accused today
present in the Court, put the knife on the
stomach of Tanmay and threatened him to stab,
if he tried to intervene. The other students who
were also travelling in the bus, helped us in
apprehending the accused. Accused was
apprehended on the bus stand and mobile phone
as well as knife was taken by us from him. My
friend Tanmay made a call to the Police. Police
reached at the Bus Stand and recorded my
statement Ex. PW 2/A which bears my signature
at point A. I handed over my mobile phone as
well as knife which were recovered from the
accused to the Police. Police prepared sketch of
the knife Ex. PW 2/B which bears my signature
at point A and thereafter, knife was seized by the
Police through a sealed pullanda. Seizure memo
of the knife is Ex. PW 2/C which bears my
signature at point A. Police also seized my
mobile phone through seizure memo Ex. PW 2/D
which bears my signature at point A. Accused
was arrested by the Police in the present case
vide arrest memo Ex. PW 2/E and his personal
search was conducted vide memo Ex. PW 2/F.
Both memos bear my signature at point A. Police
took us along with accused to the PS Ranjeet
Nagar. Thereafter, I was allowed to go by the
Police to my house. I can identify the case
property if shown to me.
At this stage, MHC(M) produced one sealed
pullanda with the seal of KS, same is opened and
contained one Mobile Phone make Nokia X2-01,
D-Gray colour. Complainant identified the same
mobile which was recovered from accused and
belongs to him. Mobile is Ex. P-1.
At this stage, MHC(M) produced one another
sealed pullanda with the seal of KS, same is
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opened and contained one buttondar knife.
Complainant identified the same knife which was
recovered from accused and was put by him on
the stomach of Tanmay. Knife is Ex. P-2. ”
(Emphasis supplied)
PW-2’s Cross-Examination (Dated 13.11.2014)
“Perhaps the route of bus number was either 944 or
984. it is correct that bus was crowded with
passengers. When I was getting down from the
bus I realized that someone had picked my
pocket and I found that my mobile phone was
missing. It was around 10.30 am. I told the
persons present around there that my mobile
phone had been stolen. The bus moved. My
friend Tanmay made a call on 100 number
regarding theft of my mobile phone. About 20-25
persons gathered there after the incident. 15-20
persons had got down from the bus alongwith me. I
took casual search of 1-2 persons but I did not find
the mobile from those persons.
After 15-20 mins of making the call to the police,
PCR van arrived there. After five minutes of PCR
van local police also came there. We alongwith
local police went to PS Ranjit Nagar. I left the
police station Ranjit Nagar at around 3/3.30 pm. It
is correct that my mobile phone was not found at the
spot and nobody was apprehended at the spot. It is
correct that neither my mobile phone was recovered
nor accused was arrested till 3 pm while i remained
in the police station. Police had not done writing
work at the spot. I signed some papers in the police
station but I did not count it. Some papers were
blank and some papers were written. I did not read
over the said papers which were signed by me nor
police read the same prior to obtaining my signature.
It is correct that I had deposed on 05.12.13 after
going through the statement at the instance of IO. It
is correct that i identified the accused Pramod at the
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instance of the IO. It is correct that accused was not
apprehended at the spot. It is correct that the
contents of Ex.PW2/A were not told by me to the
police. It is correct that seizure memo of knife
Ex.PW2/C and seizure memo of mobile phone
Ex.PW2/D and sketch memo of knife Ex.PW2/B
were made in the police station.” (Emphasis
supplied)
PW-2’s Re-Examination (Dated 13.11.2014 i.e. on the day of the cross)
“ I am a Graduate and presently pursuing MBA
from SIMBOSIS university. It is correct that I
sign any document after going through the same.
It is correct that my mobile phone was stolen. It
is correct that my friend Tanmay made a call on
my mobile phone after knowing the fact my
mobile phone was stolen. It is wrong to suggest
that we heard the ringbell of my mobile phone in the
pocket of one person nearby standing us. It is wrong
to suggest that after hearing the ringbell of my
mobile phone accused Pramod took out my mobile
phone from his pocket and destroyed the same. It is
wrong to suggest that when my friend Tanmay tried
to take my mobile phone from accused Pramod then
he took out one knife from belt of his pant and put
knife on the stomach of Tanmay. It is correct that I
had seen my mobile phone in the court on 05.12.13
and I identified the said mobile phone as belongs to
me. It is correct that I did not inform to the hon'ble
court about the pressure made by the IO on
05.12.13. It is wrong to suggest that I did not inform
to the hon'ble court about the pressure made by the
IO on 05.12.13 as it was not made by the IO to
depose me before the court. Vol. I committed
mistake on 05.12.13.
Today I have deposed correctly and I have deposed
wrong facts on 05.12.13. It is wrong to suggest that
I deposed correct fact on 05.12.13 without any
pressure. It is wrong to suggest that I am deposing
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falsely today at the instance of accused.” (Emphasis
supplied)
PW-3’s Examination-in-Chief (Dated 05.12.2013)
“In the year 2012, I was student of BOA at Pusa
Institute, New Delhi. On 13.07.2012, it was around
10 am, I boarded a bus from Shadipur Depot for
going to Patel Nagar East. My other two friends,
namely, Nitin and Tanmay with me. As soon as,
bus was reaching Patel Nagar Bus Stop. My
friend Nitin told us that his Mobile Phone make
Nokia X2-01 which was kept by him in the left
side pocket of pant was missing. My friend
Tanmay immediately made a call on his mobile
phone and the ring of his mobile phone started
and it was found ringing in the pocket of accused.
Accused took out the phone from his pocket and
destroyed the SIM. When my friend Tanmay
tried to take mobile phone from the accused,
accused took out one knife from his dub of pant.
Accused today present in the Court, put the knife
on the stomach of Tanmay and threatened him to
stab, if he tried to intervene. The other students
who were also travelling in the bus, helped us in
apprehending the accused. Accused was
apprehended on the bus stand and mobile phone
as well as knife was taken by us from him. My
friend Tanmay made a call to the Police. Police
reached at the Bus Stand and recorded my
statement U/s 161 Cr.P.C. Police prepared sketch
of the knife already Ex. PW 2/B which bears my
signature at point B and thereafter, knife was
seized by the Police through a sealed pullanda.
Seizure memo of the knife is already Ex. PW 2/C
which bears my signature at point B. Police also
seized my mobile phone through seizure memo
already Ex. PW 2/D which bears my signature at
point B. Accused was arrested by the Police in the
present case vide arrest memo already Ex. PW
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2/E and his personal search was conducted vide
memo already Ex. PW 2/F. Both memos bear my
signature at point B. Police took us along with
accused to the PS Ranjeet Nagar. Thereafter, we
were allowed to go by the Police to our house. I
can identify the case property if shown to me.
At this stage, one Mobile Phone which has
already been taken from the sealed pullanda
during testimony of PW 2 shown to the witness
who identified the same mobile which was
recovered from accused and belongs to Nitin.
Mobile is already Ex. P-1.
At this stage, one knife which has already been
taken from the sealed pullanda during testimony
of PW 2 shown to the witness who identified the
same knife already knife a Ex. P-2 .” (Emphasis
supplied)
PW-3’s Cross-Examination (dated 28.01.2015)
“It is correct that on 5.12.2013, the IO read over my
statement U/s 161 Cr.PC to me in the Court before
recording my examination-in-chief. Vol. On that
day, I had only refreshed my memory by reading my
statement U/s 161 Cr.PC. Whatever happened on
the day of incident was narrated by me in my
statement U/s 161 Cr.PC. It is correct that accused
Parmod was shown to me on that date before
recording my examination-in-chief. It is correct that
my friend Tanmay had called the police at 100
number and thereafter we were taken to PS by PCR.
It is correct that mobile phone of my friend Nitin
was not recovered after the incident. It is correct that
my friend Tanmay made a call to the stolen mobile
and he found that said mobile phone was switched
off. We remained in the PS till 3.00/4.00 pm. It is
correct that till 3.00/4.00 pm, accused Parmod was
not apprehended in this case by the police. Police
obtained my signatures on 4/5 documents out of
which some were blank. Police asked me to read the
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contents of the said documents but due to paucity of
time, I could not read them. It is correct that I saw
the accused Parmod for the first time in the Court. It
is wrong to suggest that I have deposed falsely.”
PW-5’s Testimony (Dated 10.04.2015)
“On 13.07.2012, I was posted at PCR . On that day,
I was incharge in PCR Van Oscar 45 from 8.00 AM
to 8.00 PM. I was present in the area of East Patel
Nagar and received a message from Control
Room at about 10.00 AM. Thereafter, we
reached East Patel Nagar Bus Stand near Metro
Pillar No. 164. There complainant Nitin Shukla
met us along with his friends namely Tanmay
and Mohit. They had apprehended one person by
the name of Pramod Kumar with the help of one
public person, Krishan Gopal. I sent a message
in Control Room . Thereafter, IO ASI Khazan
Singh along with his staff reached the spot.
Accused Pramod Kumar who is present in the
court today along with recovered knife and
mobile phone was handed over to the IO.
Thereafter, I again received another call and left
the spot.
It is wrong to suggest that accused Pramod was
not produced by the complainant and his friends.
It is further wrong to suggest that public persons
had not handed over knife and NOKIA mobile
phone which was recovered from the accused. It
is wrong to suggest that I am deposing falsely .”
(Emphasis supplied)
PW6’s Testimony (Dated 10.04.2015)
“Date, month and year I do not remember. However,
it was two-three years ago, at about 10.00 AM , I
was present at bus stop , East Patel Nagar, one bus
came there and public persons gathered there.
They were telling that there was pick pocketing
and a mobile phone was stolen. Public persons
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had apprehended one person. Police came there
after some time. Police made me a witness and
obtained my signatures as I was in hurry to reach my
house. They also prepared some documents. I am
unable to identify that person who was apprehended
by public persons .Even I am unable to tell the name
of public persons and name of accused.
At this stage, learned Addl. PP for the State seeks
permission to cross examine the witness as he is
resiling from his earlier statement.
Heard and allowed.
Xxxxxxxxx by learned Addl.PP for the State.
I have studied up to class 12th standard. I can read
and write Hindi. It is correct that police conducted
all the proceedings in my presence. Police also made
enquiries from me and they recorded my statement.
I had not stated in my statement Mark X to the police
that on 13.07.2012, I was going to Kendriya
Terminal in a bus route no.944 or that when the said
bus reached near Delhi Public Library, East Patel
Nagar, one person took out the mobile phone of one
passenger. Confronted with the statement Mark X of
portion A to A 1 where it is so recorded. I had also
not stated in my statement that I also deboarded
from the bus and that some boys who were studying
at PUSA institute were also deboarded or that I
came to know the name of that person Nitin Shukla
who deboarded from the bus along with his friends
Mohit and Tanmay. Confronted with the statement
Mark X of portion B to B 1 where it is so recorded.
I had also not stated in my statement that I had heard
the ringing the bell of mobile phone in the pocket of
Pramod Kumar who was apprehended there and on
demanding the phone by Tanmay , he threatened
Tanmay with knife in my presence and it was put on
the abdomen of Tanmay or that Pramod told him
“Saalo bhag jao nahi to pet phad dunga” On this
Pramod was apprehended by his friends. Confronted
with the statement Mark X of portion C to C 1 where
it is so recorded. I had also not stated in my
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statement Mark X to the police that Tanmay made a
call at 100 number, thereafter, police came there and
conducted the proceedings in my presence as the
knife and mobile phone were handed over to the
police or that it was converted into pulanda and
seized in my presence. Confronted with the
statement Mark X of portion D to D 1 where it is so
recorded.
It is wrong to suggest that I have been won over by
the accused or that I had already entered into a
outside court compromise with accused or that due
to this reason, I am not deposing true facts in the
court. It is further wrong to suggest that on 13.07.12
I was going to Kendriya Terminal in a bus route no.
944. It is wrong to suggest that accused Pramod who
is present in the court today is the same person who
was apprehended by Nitin Shukla along with his
friends Tanmay and Mohit with my help. It is also
wrong to suggest that I heard the ring of mobile
phone from the pocket of accused Parmod or that
when it was demanded by Tanmay, he put knife on
the abdomen of Tanmay. It is further wrong to
suggest that accused present in the court today is the
same person who had committed theft of mobile
phone in a running bus route no. 944. It is further
wrong to suggest that all the proceedings were
conducted in my presence or that after going
through all the documents and their contents I
signed the same at point X on each document which
were prepared in my presence or that I am
deliberately not deposing the true facts in the court
in order to save the accused from the penal
punishment or that I am deposing falsely.”
(Emphasis supplied)
21. Section 3 of the Evidence Act includes within the ambit of “oral
evidence” all statements which the Court permits or requires witnesses to
make before it, while Sections 137 and 138 of the same regulate the
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examination-in-chief, cross-examination and re-examination of witnesses.
The testimony of a witness must always be read as a whole and assessed with
due care and caution. A statement recorded by the police under Section 161
CrPC does not ordinarily constitute substantive evidence but subject to the
exceptions preserved under Section 162(2) CrPC, such a statement may be
used for the limited purpose of contradicting its maker, when examined as a
prosecution witness, in terms of the proviso to Section 162(1) CrPC and in
the manner prescribed under Section 145 of the Evidence Act. Section 154(2)
of the Evidence Act further makes it clear that a party permitted under Section
154(1) to put questions to its own witness in the nature of cross-examination
is not precluded from relying upon any part of that witness’s evidence. Thus,
neither the witness’s subsequent departure from the version given in
examination-in-chief nor the permission granted to the prosecution to cross-
examine its own witness has the effect of effacing the entire testimony from
the record. The Court may rely upon such part of the testimony as it finds
credible and trustworthy upon a careful scrutiny of the deposition as a whole
and in the light of the other evidence available on record.
22. The Supreme Court has repeatedly cautioned against granting long
adjournments between the examination-in-chief and cross-examination of a
witness. In Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 , the Supreme
Court deprecated the long interval of one year and eight months between the
examination-in-chief and cross-examination of the witness, observing that it
afforded ample time to pressurise or win him over. The Court held that the
evidence of such a witness must be read in its entirety and that the dependable
portion of his earlier testimony could not be discarded merely because he
subsequently prevaricated. It further emphasised that cross-examination
should ordinarily be completed on the same day as the examination-in-chief.
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23. Further, in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200 , the Apex
Court reiterated that prolonged adjournments following examination-in-chief
may, with the passage of time, enable private witnesses to be won over. It
reaffirmed, that the testimony of a witness who subsequently turns hostile is
not effaced from the record and that those portions which are found
dependable upon careful scrutiny may be relied upon. The Court accordingly
in this case directed that the Trial Courts endeavour to complete the
examination-in-chief and cross-examination of private witnesses on the same
day, as far as possible. The relevant portion of the aforesaid judgment is as
follows:
Rajesh Yadav v. State of U.P. (supra)
“ 22. The expression ‘hostile witness’ does not
find a place in the Evidence Act. It is coined to
mean testimony of a witness turning to depose in
favour of the opposite party. We must bear it in
mind that a witness may depose in favour of a
party in whose favour it is meant to be giving
through his chief-examination, while later on
change his view in favour of the opposite side.
Similarly, there would be cases where a witness
does not support the case of the party starting
from chief-examination itself. This classification
has to be borne in mind by the Court. With
respect to the first category, the Court is not
denuded of its power to make an appropriate
assessment of the evidence rendered by such a
witness. Even a chief-examination could be
termed as evidence. Such evidence would become
complete after the cross-examination. Once
evidence is completed, the said testimony as a
whole is meant for the court to assess and
appreciate qua a fact. Therefore, not only the
specific part in which a witness has turned hostile
but the circumstances under which it happened
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can also be considered, particularly in a situation
where the chief-examination was completed and
there are circumstances indicating the reasons
behind the subsequent statement, which could be
deciphered by the court. It is well within the
powers of the court to make an assessment, being
a matter before it and come to the correct
conclusion. ” (Emphasis supplied)
24. Section 309 CrPC likewise mandates that, once the examination of
witnesses has commenced, it shall proceed from day to day unless the Court
finds it necessary to adjourn the proceedings for reasons to be recorded. More
recently, in Selvamani v. State of T.N., (2024) 19 SCC 112 , the Supreme
Court upheld reliance upon the examination-in-chief of a witness, which stood
corroborated by the other material on record, despite the witness having
altered his version when cross-examined after an intervening period.
25. The same principle was applied by a Coordinate Bench of this Court
in Babu Ram v. CBI, 2014 SCC OnLine Del 2838 , wherein the witness
supported the prosecution during examination-in-chief but resiled from that
version when cross-examined after an interval. The Court in this case accepted
the credible part of the concerned witnesses’ examination-in-chief, as it stood
corroborated by the remaining evidence on record. The governing principle,
therefore, is neither that the testimony given in examination-in-chief must
invariably prevail over a subsequent contrary statement made in cross-
examination, nor that the subsequent retraction automatically effaces the
earlier sworn testimony, but, that the testimony of a witness who subsequently
resiles or makes a contrary statement in cross-examination does not stand
effaced from the record. That the deposition must be read and assessed as a
whole in light of the entire evidence on record, and the Court must determine
which part of it is truthful, dependable and acceptable.
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26. In the present case, the examinations-in-chief of PW-2 and PW-3 were
recorded on 05.12.2013. Their cross-examinations were deferred at the
request of the defence and were eventually recorded on 13.11.2014 and
28.01.2015, respectively. The order dated 16.07.2014 further records that the
complainant and the learned counsel for the appellant jointly sought an
adjournment to approach this Court for quashing of the concerned FIR. Now
that order is not, by itself a proof of any compromise or inducement, but it is
however, a relevant intervening circumstance when assessing the materially
altered versions subsequently given by PW-2 and PW-3.
27. In their examinations-in-chief, PW-2 and PW-3 furnished a coherent
account of the occurrence. They deposed that the mobile phone was found
missing, that its ringtone was thereafter heard emanating from the appellant’s
pocket, that the appellant took out the mobile phone and discarded its SIM
card and that he placed a knife against PW-4 and threatened to stab him. They
further deposed that the appellant was apprehended at the spot and that the
mobile phone and the knife were taken from him. Both of the above witnesses
also, identified the appellant, the mobile phone and the knife before the Court.
28. It is true, that the cross-examinations recorded subsequently contain
material departures from the aforesaid account but those departures cannot be
considered in isolation from the remainder of their testimony. In his re-
examination, PW-2 admitted that he was a graduate, that he signs documents
only after reading them, that his mobile phone had been stolen and that PW-
4 had called his number. He had also identified the mobile phone before the
Court. He further admitted that, on 05.12.2013, he had not complained to the
Court that the Investigating Officer (IO) had compelled him to depose in any
particular manner. PW-3, for his part, stated that his police statement had
merely refreshed his memory and that he had narrated to the police what had
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occurred. Now although, the cross-examinations recorded subsequently
contain material departures from the aforesaid account, those departures do
not constitute a credible correction of the earlier testimony. PW-2’s assertion
that he had deposed on 05.12.2013 at the instance of the IO is materially
weakened by his admission that he did not complain to the Court on that date
of any pressure having been exerted upon him. His further admission that he
ordinarily signed documents only after reading them is inconsistent with his
claim that he had signed blank or written papers without reading their
contents. Significantly, even while resiling from the incriminating part of the
occurrence, he continued to admit that his mobile phone had been stolen, that
PW-4 had called his number and that he had identified the handset before the
Court. PW-3 likewise clarified that his statement given to the police had
merely been used to refresh his memory and affirmed that he had narrated to
the police what had occurred. These answers somewhere demonstrate that the
subsequent versions were not coherent alternative accounts of the incident but
selective retractions of those facts which implicated the appellant. This Court
is, therefore, not persuaded to discard their examinations-in-chief merely on
the basis of those later denials, particularly when the earlier account receives
independent corroboration from the evidence discussed hereafter. At this
stage, it is also material to note that, in Vinod Kumar v. State of Punjab
(supra) , the Supreme Court treated the interval of one year and eight months
between the examination-in-chief and cross-examination as having afforded
ample time to pressurise or gain over the witness and held that the resulting
prevarication did not justify brushing aside the earlier testimony when the
evidence was read in its entirety. The present case must be assessed on the
very same principle, particularly since PW-2 and PW-3 resiled only after
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intervals of approximately eleven months and nearly fourteen months,
respectively.
29. The account furnished by PW-2 and PW-3 in their examinations-in-
chief as stated above, also receives independent corroboration from the
testimony of PW-5, the PCR official. PW-5 deposed that, upon reaching the
East Patel Nagar bus stand near Metro Pillar No. 164, he found that the
appellant had been apprehended by PW-2, PW-3 and PW-4 with the
assistance of PW-6. He further stated, that the appellant, along with the mobile
phone and the knife, was handed over to the IO. His testimony was met merely
with bare suggestions, and no material contradiction could be elicited from
him. PW-6, despite being unable to identify the appellant before the Court,
supported the occurrence of a mobile phone theft, the gathering of members
of the public and the apprehension of one person before the arrival of the
police.
30. The contemporaneous official record, lends further assurance to the
prosecutions version. DD No. 15-A and the proved PCR material, record that
a pickpocket had been apprehended near Metro Pillar No. 164. The PCR
message likewise records, that a snatcher had been apprehended and that a
mobile phone and a knife had been recovered. The IO also deposed that the
appellant was produced at the spot by the complainant and his companions
along with the recovered articles. The present case is therefore, not one of a
belated arrest founded upon a doubtful test identification or of a recovery
subsequently engineered by the investigating agency. The appellant’s
apprehension at the spot stands established by mutually reinforcing oral
evidence and contemporaneous documentary material.
31. The explanation offered by the appellant in his statement under Section
313 CrPC that he had been picked up from the gate of Sir Ganga Ram Hospital
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and falsely implicated on account of a grudge borne by the IO remained a bare
assertion. No document relating to his treatment, circumstance concerning his
movements or other material was produced to render the explanation
probable. The said explanation does not displace the cogent evidence adduced
by the prosecution.
32. The substantial interval preceding the cross-examinations, the
intervening request for quashing of the proceedings, the abrupt and internally
inconsistent departures made thereafter, and the independent corroboration
available in support of the earlier account, cumulatively justify the conclusion
that the subsequent retractions were not truthful. The legal significance of
these circumstances is reinforced by the Supreme Court’s decision
in Selvamani v. State of T.N. (supra) , wherein, after noticing that the
witnesses had resiled in their cross-examinations recorded three and a half
months after their examinations-in-chief, the Court held that the long gap
supported the inference that they had been won over, while accepting their
earlier version because it stood sufficiently corroborated by the other evidence
on record. These circumstances altogether, do indicate, that PW-2 and PW-3
had come under an intervening influence. The finding of guilt however, does
not rest upon that inference alone. It rests upon the reliable portions of their
sworn testimony, read together with the testimony of the PCR official and
PW-6, the contemporaneous DD and PCR records, the evidence of the IO,
and the recoveries proved during the trial.
33. The evidence accepted above establishes that, while carrying away the
stolen mobile phone, the appellant placed the knife against PW-4 and
threatened to stab him when the phone was demanded. The convictions under
Sections 392 and 397 IPC, therefore, warrant no interference. The proved
possession and carrying of the button-operated knife in a public place, in
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contravention of the notification dated 17.02.1979 issued under Section 4 of
the Arms Act, also sustains the conviction under Section 25(1B)(b) of that
Act.
34. The impugned judgment however, calls for modification on two limited
aspects. First, this Court is of the opinion that the conviction of the appellant
under section 411 IPC cannot be sustained. In Mir Nagvi Askari v. CBI,
(2009) 15 SCC 643 , the Supreme Court explained that Section 411 IPC is
directed against a receiver of stolen property and not against the principal
thief, robber or mis-appropriator. The relevant portion depicting as aforesaid,
is as under:
“ 181. Section 411 provides for punishment to the
person who dishonestly receives stolen property.
The person must have the knowledge that it is a
stolen property. We must bear in mind that A-3 had
entered into a criminal conspiracy with A-1, A-2
and A-4. He would in that respect be deemed to have
known that the property in question was stolen
property. This section as also the succeeding
sections are directed not against the principal
offender e.g. a thief, robber or misappropriator
but against the class of persons who trade in
stolen articles and are receivers of stolen
property. Principal offenders are therefore
outside the scope of this section . Accordingly, the
conviction of the principal offender is also not a
prerequisite to the conviction of the receiver of
stolen property under this section. However, in the
present case the principal offenders i.e. A-1, A-2
and A-4 have been held guilty of a “criminal breach
of trust”, therefore, the conviction of A-3 would be
even more clearly established from the facts and
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circumstances of the present case.” (Emphasis
supplied)
So as can be seen from the aforesaid judgment, once the appellant has been
found to be the person who robbed the mobile phone, his separate conviction
under Section 411 IPC for receiving or retaining the very same property
cannot be sustained.
35. Secondly, the conviction under Section 27 of the Arms Act cannot be
sustained. In Surinder Singh v. State (UT of Chandigarh), (2021) 20 SCC
24 , the Apex Court held that, to establish an offence under Section 27, the
prosecution must necessarily prove contravention of either Section 5 or
Section 7 of the Arms Act. The same shall be clear from the relevant portions
reproduced below:
“ 29. Adverting to the conviction of the appellant
under Section 27 of the Arms Act, it appears to us
that the trial court has erred in arriving at his
culpability. There is no gainsay that in order to
prove a charge under Section 27 of the Arms Act,
the prosecution must necessarily demonstrate
contravention of either Section 5 or 7 of the Act .
In the instant case, although not explicitly stated, it
appears that the trial court has held it to be a case of
breach of Section 5 of the Arms Act, which
stipulates that no person shall use, possess,
manufacture, etc. any firearms, unless such person
holds a licence in this behalf, and prescribes a
minimum punishment of 3 years of imprisonment.”
“ 31. True it is that prior to the amendment of
Section 27 of the Arms Act, vide Arms
(Amendment) Act, 1988, the said provision
penalised the use of any arms and ammunition
for any “unlawful purpose”. However, post its
amendment, Section 27 of the Arms Act is strictly
confined to violation of conditions mentioned
either under Section 5 or 7 of the Arms Act and
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the “unlawful purpose” of using arms and
ammunition is no longer an inseparable
component of the delinquency. ” (Emphasis
supplied)
36. Now in the present case, the contravention proved against the appellant
is confined to the possession and carrying of the button-operated knife in a
public place in breach of the notification dated 17.02.1979 issued under
Section 4 of the Arms Act. But the prosecution has neither established, that
the use of the said knife was in contravention of Section 5 nor proved, that it
was a prohibited arm within the meaning of Section 7. Therefore, a
contravention of the notification issued under Section 4 cannot substitute the
statutory requirement under Section 27.
37. Accordingly, the conviction of the appellant under Section 27 of the
Arms Act is liable to be set aside, while his conviction under Section
25(1B)(b) of the Act shall remain undisturbed.
CONCLUSION
38. In view of the discussion hereinabove, the conviction of the appellant
under Section 411 of IPC and Section 27 of the Arms Act is set aside.
Consequently, the sentence imposed vide the order on sentence dated
22.12.2015 for the offence punishable under Section 411 IPC is also set aside.
39. However, the conviction of the appellant under Section 392 of IPC,
Section 397 of IPC and Section 25(1B)(b) of the Arms Act, together with the
sentences imposed thereunder, stands affirmed. The substantive sentences
imposed for the same shall run concurrently and the appellant shall be entitled
to the benefit of set-off under Section 428 CrPC.
40. Therefore, the judgment of conviction dated 21.12.2015 and the order
on sentence dated 22.12.2015, stand modified to the aforesaid extent.
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41. Since the sentence of the appellant was suspended by a Coordinate
Bench of this Court vide an order dated 19.07.2017, he shall now surrender
before the concerned learned Trial Court within a period of two (2) weeks
from the date of pronouncement of this judgment to undergo the remainder of
the sentence. In the event of his failure to surrender within the stipulated
period, the concerned learned Trial Court shall take appropriate steps to secure
his custody.
42. Therefore, the present criminal appeal is partly allowed in the aforesaid
terms and is accordingly, disposed of.
43. Pending application(s), if any, also stand(s) disposed of.
44. Interim order(s), if any, also stand(s) vacated.
45. A copy of this judgment be sent to the concerned learned Trial Court
as well as the concerned jail superintendent for information and necessary
compliance.
46. This judgment be uploaded on the website forthwith .
MADHU JAIN
(JUDGE)
OCTOBER 29, 2026/PG
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